6-3 Supreme Court makes fewer ideological decisions.

The Supreme Court’s Ideological Splits Expected to Decrease This Term

The number of ideologically polarized, 6-3 rulings on the Supreme Court is unlikely to match the roughly dozen such splits handed down last term as the justices prepare to release their final batch of major rulings this week.

Last year, the liberal justices were on the dissenting side in 13 rulings, including in major decisions to overturn Roe v. Wade and a ruling that applied a “historical tradition” approach to determine the scope of Second Amendment protections. This year, the justices have only produced that ideological split in two cases, Samia v. US and Jones v. Hendrix.

“Whether they truly agree with it or not — with the majority opinions — I think they’re there to possibly make it less of a hard conservative outcome,” Feldman said.

In the 49 decisions in argued cases the court has decided so far, the trio of justices most often to side against the majority have been three Republican-appointed justices. Alito has dissented in 12 cases this term, Justice Clarence Thomas has dissented in 12, and Justice Neil Gorsuch has dissented in 10.

With new opinions expected Tuesday morning, the number of rulings split between the six Republican-appointed and three Democratic-appointed justices could rise. Liberal justices could find themselves on the dissenting end of contentious issues such as the fate of affirmative action, President Joe Biden’s plan to wipe out millions of student loan borrowers’ debt, and whether some businesses can refuse service for same-sex weddings.

Legal experts, including Case Western Reserve University Law School professor Jonathan Adler, have pushed back on labeling the court as more “conservative” or “liberal,” arguing “no term gives us a representative picture of the court’s jurisprudence because no term is wholly representative of the range of issues the court confronts.

“We can only understand the court by looking more broadly at what it’s doing. So, the court is neither as predictably conservative as folks thought a year ago or as moderate as some are suggesting now,” Adler told the Washington Examiner.

The Supreme Court receives thousands of petitions a year, and each submission has a roughly 20% chance of being accepted for consideration. It takes a vote by at least four justices to tee up a case for future arguments.

Because of that selectivity, Cornell Law School professor William A. Jacobson told the Washington Examiner it would be a “mistake” to rely too heavily on past trends “because of the limited docket that the Supreme Court has.”

“I think if you focus on the key ideological disputes, then maybe it is a little bit more true that it’s getting closer to 6-3,” Jacobson said, adding it’s also the case that a 6-3 split means “conservatives can afford to lose somebody” to the dissenting side.

Feldman said one key takeaway so far from this term is not that the liberals aren’t dissenting, but that the ideological splits will likely be a less frequent occurrence when comparing the two most recent terms.

When it comes to certain disputes, the justices are “looking for ways possibly to find compromise,” Feldman said, pointing to the three separate written concurrences in the Sackett decision “that read kind of like dissents.”

“The liberals could either decide to dissent over and over again, or to do what they can to have some say in the outcome,” Feldman said. “So, they’re going to get their say by finding some way to join, some common ground.”

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